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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member
National Insurance Co. Ltd. —Petitioner
versus
SK. Mahmood Through Lrs. and Ors. —Respondents
Revision Petition No.2716 of 2013
(Against the Order dated 15/04/2013 in Appeal No. 649/2009 of the State Commission Maharashtra)
Decided on 4.12.2020
Counsel for the Parties:
For the Petitioner:Dr. Sushil Kumar Gupta, Advocate
For the Respondents No. 1 through Legal Heirs: NEMO (not served)
For the Respondents Nos.2 & 3: NEMO (not served afresh)
IMPORTANT POINT
Reasoned award made by Fora below cannot be interfered with in revisional jurisdiction.
Headnote:
Consumer Protection Act, 1986 – Section 21(b) [Consumer Protection Act, 2019 – Section 51] – Insurance – Medical negligence – Death of patient – Both Fora below, having appraised case, having weighed evidence, have returned concurrent findings of deficiency / negligence on part of Doctor 1 – Doctor 1 and Insurance Co. (who had indemnified Doctor 1) were ordered jointly and severally to pay Rs. 1.50 lakh as compensation and Rs. 5,000/- for mental harassment within one month of receipt of District Forum’s Order, failing which they were liable for interest @ 9% per annum – No palpable crucial error in appreciating evidence is visible; no jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible – Award made by District Forum, as upheld by State Commission, appears just and equitable in facts of the case – Nothing warrants interference in exercise of revisional jurisdiction of this Commission – Revision Petition dismissed – State Commission’s Order confirmed – Award made by District Forum, as upheld by State Commission, sustained – Liability of Doctor 1 and Insurance Co. shall be joint and several.
Held: The District Forum, vide its Order dated 31.01.2009, partly allowed the Complaint. Medical negligence was determined against the Doctor 1. The Order was passed on contest, after the affording of opportunity to the Doctor 1 and the Doctor 2 and the Insurance Co.
The Doctor 1 and the Insurance Co. (who had indemnified the Doctor 1) were ordered jointly and severally to pay Rs. 1.50 lakh as compensation and Rs. 5,000/- for mental harassment within one month of receipt of the District Forum’s Order, failing which they were liable for interest @ 9% per annum.
It is well evinced from the examination made by the two Fora below that Doctor 1, holding M.S. (General Surgeon), was not a Gynaecologist. Doctor 2, holding D.H.M.S., the wife of Doctor 1, assisted Doctor 1 in his work. The 18-year old pregnant patient was admitted for delivery at around 4.30 a.m. Her newly-born baby died. She also died at around 8.15 p.m. on the same day. A Gynaecologist was not summoned. Gynaecological and other specialized consultation / care was not arranged. Timely referral to a better equipped hospital with better expertise was not made. The requisite standard and duty of care was not manifest.
Both the Fora below, having appraised the case, having weighed the evidence, have returned concurrent findings of deficiency / negligence on the part of the Doctor 1.
No palpable crucial error in appreciating the evidence is visible; no jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible.
The Award made by the District Forum, as upheld by the State Commission, appears just and equitable in the facts of the case.
Nothing warrants interference in exercise of the revisional jurisdiction of this Commission.
The Insurance Co. agitating in Revision before this Commission since 2013, in respect of an incident of medical negligence resulting in the death of the patient and her newly-born child that occurred in 1992, the challenge being to the findings of medical negligence against the Doctor 1 (and not against the Insurance Co. per se), no dispute being brought in respect of the (separate) contract of insurance between the Insurance Co. and the Doctor 1, not serving the Legal Heirs of the Complainant from 20.09.2017 onwards i.e. when it was ordered that the Legal Heirs be substituted, not serving the Doctor 1 and the Doctor 2 afresh from 20.09.2017 onwards i.e. when it was directed that they be served again, agitating concurrent findings of medical negligence against the Doctor 1 (and not against the Insurance Co. per se) by the two Fora below, no infirmity being visible in the said findings of medical negligence on scrutiny by this Commission in its revisional jurisdiction, does not reflect favourably on the Insurance Co., this necessitates cost.
11. The Revision Petition, being patently ill-conceived and totally bereft of merit, is dismissed. The State Commission’s Order of 15.04.2013 is confirmed. The Award made by the District Forum, as upheld by the State Commission, is sustained. The liability of the Doctor 1 and the Insurance Co. shall be joint and several.
In addition, Cost of Rs. 2.50 lakh is imposed on the Insurance Co. (alone) through its Chief Executive, of which Rs.2.25 lakh shall paid to the Legal Heirs of the deceased Complainant (Rs. 25,000/- each to each of the 09 Legal Heirs) and Rs. 0.75 lakh shall be deposited in the ‘Consumer Legal Aid Account’ of the District Forum.
The Award and the Cost shall be made good within one month of the pronouncement of this Order, failing which the District Forum shall undertake execution, for ‘Enforcement’ and ‘Penalties’. (Paras 6, 9, 10 and 11)
Result: Revision Petition dismissed.
ORDER
Taken up through video conferencing.
Dinesh Singh, Presiding Member.—This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 15.04.2013 of The State Consumer Disputes Redressal Commission, Maharashtra, hereinafter referred to as the ‘State Commission’, in F.A.s No. 425 of 2009 and No. 649 of 2009 arising out of the Order dated 31.01.2009 in C.C. No. 195 of 2007 passed by The District Consumer Disputes Redressal Forum, Beed, hereinafter referred to as the ‘District Forum’. The Petitioner, The National Insurance Company Ltd., was the Opposite Party No. 3 before the District Forum, and is hereinafter being referred to as the ‘Insurance Co.’.
The original Respondent No. 1, Shaikh Mahmood, was the Complainant before the District Forum, he expired during the pendency of the proceedings before this Commission, and is hereinafter being referred to as the ‘Complainant’.
The extant Respondents No. 1 to No. 9, Julekha Begum (wife of the deceased Complainant), Shaikh Jafar Shaikh Mahmood, Shaikh Mazar Mahmood, Shaikh Juber Shaikh Mahmood, Shaikh Zaber Shaikh Mahmood, Shaikh Azhar Shaikh Mahmood, Shaikh Abdul Rahman Mused (all sons of the deceased Complainant), Sadiya Fatima (unmarried daughter of the deceased Complainant) and Farida (widowed daughter of the deceased Complainant), are the Legal Heirs of the Complainant, and are hereinafter being referred to as the ‘Legal Heirs’.
The original Respondents No. 2 and No. 3, who are the extant Respondents No. 10 and No. 11 (after substitution of the Legal Heirs of the original Respondent No. 1, the deceased Complainant, as Respondents No. 1 to No. 9), Dr. Sopanrao Patil and Dr. Nayana w/o Dr. Sopanrao Patil, were Opposite Parties No. 1 and No. 2 before the District Forum, and are hereinafter being referred to as the ‘Doctor 1’ and the ‘Doctor 2’ respectively.
Vide Order dated 09.11.2016 the Doctor 1 and the Doctor 2 were proceeded against ex parte. However, vide subsequent Order dated 20.09.2017 it was inter alia directed that notice be issued again to the Doctor 1 and the Doctor 2.
Vide Order dated 20.09.2017 the Legal Heirs of the Complainant were substituted.
2. A perusal of the daily Orders from 20.09.2017 i.e. from the date the Legal Heirs were ordered to be substituted shows that till the date of the last hearing i.e. till 23.11.2020 the Legal Heirs had not been served by the Insurance Co.
Explicit mention is (inter alia) made in the daily Order of 06.08.2019 that:
“It is seen from the record that Legal Heirs of respondent no. 1 are not yet served. Similarly, respondent nos. 2 and 3 have also not been served.”
That is to say, the Legal Heirs and the Doctor 1 and Doctor 2 were yet to be served.
Again, explicit mention is (inter alia) made in the daily Order of 11.11.2020 that:
“As is evident from the previous Orders dated 02.07.2020 and dated 06.08.2019, the legal heirs of the respondent no. 1 and the respondent no. 2 & 3 have not been served (afresh).
“The incident is of 1992. The Order of the District Forum is of 2009. The impugned Order of the State Commission is of 2013. The instant Revision Petition is of 2013. We are now in 2020.
“The learned counsel for the petitioner requests for a brief adjournment of one week to seek instructions.”
That is to say, the Legal Heirs and the Doctor 1 and the Doctor 2 were yet to be served, the litigation apropos an incident of 1992 was yet to be decided (in 2020). The learned Counsel for the Insurance Co. sought a week’s adjournment to seek instructions.
3. On 23.11.2020, learned Counsel for the Insurance Co. submitted, on instructions, that a reasoned order be passed by this Commission.
None was present for the Legal Heirs, who had not been served, subsequent to the Order of 20.09.2017, when they were substituted for the deceased Complainant.
None was present for the Doctor 1 and the Doctor 2, who had not been served afresh, subsequent to the Order
